Why US immigration crackdown is stalled

His name is Enrique. Like an estimated 17 million others, when he files his 1040 to pay taxes, the Social Security number he uses does not match his name.

For some people, it's because they've changed names or been married – or their employer made a clerical error. Enrique makes no bones about his mismatch; it's because he's not a legal citizen.

Those different explanations for the discrepancies in the Social Security Administration's files are at the center of one of the most heated immigration debates of the year.

Since Congress failed to enact comprehensive immigration reform in June, the Department of Homeland Security (DHS) has aggressively moved to use Social Security filings to ferret out illegal immigrants. Their target is employers who don't fire workers who have questionable Social Security numbers.

But a crucial, unresolved question is whether the bulk of these mismatches involve legal workers, who could be fired because of a clerical mishap, or illegal immigrants, abusing a system that has long tolerated, and some say even encouraged, their work in the US.

Last week, a federal judge in San Francisco ruled DHS's methods would cause "serious irreparable harm" to workers and employers and put off implementation of the rule indefinitely. He concluded that too many legal workers would be harmed.

DHS is expected to appeal the decision. "We are examining all of the options," says DHS spokeswoman Veronica Nur Valdes.

One of the biggest problems that prompted the judge to halt DHS's plan is the size and complexity of the federal records involved. Each year the Social Security Administration (SSA) processes more than 250 million wage reports from employers. The information is used to determine future Social Security, disability, and survivor benefits for each eligible worker. Last year, an estimated 4 percent of the wage reports had an employee's name that didn't match the corresponding Social Security number – that's about 8 million mismatches. In total, the SSA has 435 million records in its database. A 2006 report by the SSA's inspector general found a total of 17.8 million of those records contained errors.

Advocates of using Social Security numbers to discourage employers from hiring illegal immigrants contend it is in all workers' best interest to correct any inconsistencies, since that database will determine future benefits.

"Nothing is 100 percent perfect," says Ira Mehlman, a spokesman for the Federation for American Immigration Reform, a nonprofit group in Washington, D.C. "The procedures allow 90 days to rectify any errors – and quite frankly, if there are any errors about me, I'd rather find out about it now, rather than when I file for benefits."

He and other advocates note that the law requiring correction of Social Security mismatches has been on the books since 1986. Every year, the SSA sends out more than 100,000 letters warning employers if there are mismatches, but there has been little enforcement. The decision by DHS to include a set of procedures for rectifying the problems – as well as a listing of penalties of up to $11,000 per employee for failure to do so – is a simple way to enforce current law, they say.

"Will it be disruptive to the economy? To some degree sure it will. Will it cripple it? No," says Mark Krikorian, executive director of the Center for Immigration Studies in Washington, D.C. "Employers have known for a long time that this was coming."

Advocates of the DHS plan contend that some 90 percent of the 8 million mismatches from the 2006 filings involve illegal immigrants.

Opponents of the DHS plan point out that that 90-percent estimate is unproven. The SSA itself admits that there are 17.8 million inconsistencies in its database, and opponents say it's impossible to determine the legal status of people with discrepancies. They argue that millions of legal citizens and residents could be unjustly fired if their employer receives a no-match letter. Among those at risk: Women who have been married and changed their names and legal residents whose paperwork is making its way through the federal immigration system. These critics note that the SSA doesn't have access to files containing a worker's immigration authorization or status. A 2003 University of Illinois study of the "no match" letter found: "Thirty-four percent of workers who were fired reported that their employer failed to grant them an opportunity to correct their SSN" – Social Security number – even though the SSA's "no match" letter states clearly that it is not an automatic indication that an employee is illegal. Some employers also used the letters indiscriminately against workers who complained of unsafe working conditions or wage-law violations.

"It causes significant instability in local labor markets," says Nik Theodore, director of the Center for Urban Economic Development at the University of Illinois at Chicago and coauthor of the report.

Moreover, the structure of the federal government makes it difficult to use Social Security numbers as immigration-enforcement tools, say opponents of the DHS plan. For instance, the Internal Revenue System will give individual tax identification numbers to people who are filing to become legal residents – even if they're not yet. Many immigration lawyers encourage their clients to pay taxes each year so as not to run afoul of tax laws.

"Under tax law, regardless of immigration status, you're required to pay taxes," says James O'Malley, an immigration expert in New York. "And the IRS has been very accommodating in that they'll accept the tax return without a proper Social Security number and they will accept a check."

Enrique, who asked that his real name not be used, has applied for legal status. In the meantime, he has been paying taxes for seven years. The reason, he adds, is to "make it a bit easier to get that green card down the road."

The Social Security number he uses: 000-000-000. He knows he'll never get the retirement benefits he's currently paying for, but sees the taxes he pays now as a kind of penalty for his decision to work here before being granted legal status.